Duda’s ‘commissioner’ stopped the deliberations of the Assembly of the Supreme Court Judges when the voting was not in line with his thoughts

The Supreme Court judges did not choose candidates to be Małgorzata Gersdorf’s successor for the second day in a row. On Saturday, the acting president of the Supreme Court, Kamil Zaradkiewicz, again rejected all the motions of the judges of the ‘old’ Supreme Court and took the floor away from them. And when the result of valid voting was not in line with his thoughts, he stopped the session.

On Saturday, 9 May 2020, the General Assembly of the Supreme Court Judges met again to nominate five candidates, from among whom President Andrzej Duda is to elect the new first president of the Supreme Court. The assembly started on Friday 8 May and lasted 8 hours.

As many as 97 judges are taking part in the Assembly (there are 99 judges in the Supreme Court). The majority are judges of the three old chambers of the Supreme Court, i.e. the Criminal, Civil and Labour and Social Security Chambers. They have a total of 55 votes.

The new judges – nominated by the new National Council of Judiciary – have 42 votes. They are mainly judges from the Disciplinary Chamber appointed under Prawo i Sprawiedliwość (PiS) and the Chamber of Extraordinary Control and Public Affairs.

A new judge of the Supreme Court is also the acting president of the Supreme Court, Kamil Zaradkiewicz, who was appointed to this position by President Andrzej Duda.

It was Zaradkiewicz who called and chairs the General Assembly of the Supreme Court Judges. And he already showed on Friday that he has only one objective – to select candidates for President Duda as quickly as possible.

He is chairing the Assembly arbitrarily, not allowing the judges of the old Chambers of the Supreme Court to vote and is rejecting all their motions, i.e.

to set the meeting agenda and the rules of voting for the candidates;

to exclude the judges from the illegal Disciplinary Chamber;

to involve the media in the Assembly.

The atmosphere in the room was confrontational. Two more votes were held on Friday to elect members of the returning committee, which is to count the votes for the candidates to the office of president of the Supreme Court. But the members of this committee were not elected.

Zaradkiewicz’s rules: the ‘old’ judges are to sit quietly, the new judges can speak up

The second day of the Assembly started on Saturday at noon. The session lasted over seven hours. And again, they did not manage to elect candidates to the office of president of the Supreme Court.

After 7 p.m., Kamil Zaradkiewicz announced a break until Tuesday, 12 May at 10 a.m. Saturday’s meeting again took place in a confrontational atmosphere. At the beginning, Zaradkiewicz unexpectedly decided that he would agree to the media participating in the proceedings, although on Friday – also on his own – he ruled out the participation of the media. The ‘old’ judges then asked for the media to participate.

Next, the judges from the old Chambers again submitted their motions and Zaradkiewicz rejected them on his own. The judges repeated the motion to pass the agenda and to establish the rules on the voting. This time they submitted it in writing, 49 judges from the old Supreme Court signed it.

But Zaradkiewicz decided not to put it to the vote. Then four judges, all professors, tried to take the floor. They were Krzysztof Rączka, Piotr Prusinowski, Włodzimierz Wróbel and Marta Romańska. But Kamil Zaradkiewicz either did not give them the floor or deprived them of the right to speak.

On Saturday, however, he gave the floor to the new Supreme Court judges. The president of the Chamber of Extraordinary Control and Public Affairs Joanna Lemańska, a good friend of President Andrzej Duda, spoke freely. She is the favourite for the office of the new first president of the Supreme Court. Lemańska was able to speak about how she interprets the rules of the Supreme Court, which were approved by President Duda.

Wiesław Kozielewicz, who may stand for election to the post of the new president of the Supreme Court, was also able to speak freely. Kozielewicz is an ‘old’ judge of the Supreme Court; he is currently the president of the Criminal Chamber. However, it can be seen that he is willing to cooperate with the ‘good change’ in the courts.

He proposed postponing the General Meeting indefinitely or until the end of June at the General Meeting on Saturday. He proposed that, by that time, Zaradkiewicz should request the president to change the rules of the Supreme Court, whereby Duda would specify the principles of electing candidates to the post of president of the Supreme Court.

Kozielewicz also suggested that the Supreme Court’s Office of Studies and Analyses should prepare a motion on Zaradkiewicz’s instructions to request the full membership of the Supreme Court to withdraw from the ‘principle of the legal resolution of 23 January 2020’ with the involvement of the new Supreme Court judges.

This resolution of the three old chambers of the Supreme Court undermines the status of the new NCJ and the Disciplinary Chamber appointed with its involvement. In other words, Kozielewicz suggests that the Supreme Court itself should neutralize its own resolution so that mainly judges from the Disciplinary Chamber are able to take part in the deliberations.

Zaradkiewicz stops the Assembly

After these scuffles of the ‘old’ judges with Zaradkiewicz, an attempt was made for a third time to select a returning committee to count the votes for candidates for the office of president.

There were two votes on Friday. One person from each chamber was chosen for the commission (people from the new Chambers came forward), but none of them gained support.

On Saturday, Zaradkiewicz himself unexpectedly changed the rules for selecting people for the returning committee. He stated that each Chamber should put two candidates up to this commission. While the judges are only to vote ‘for’ them. Those who receive the most votes will win.

Only that the committee appointed to count the votes for the candidates for the returning committee counted the votes differently. And it turned out that none of the candidates received support. This is because it transpired that the majority of votes were ‘against’.

There were five judges in this committee – one from each Chamber. From the new chambers, there was Małgorzata Bednarek from the Disciplinary Chamber (a former prosecutor, Ziobro’s associate) and Prof. Antoni Bojańczyk from the Control Chamber.

Bojańczyk supported such a result from the voting to the returning committee. Bednarek submitted a dissenting opinion wanting to consider some of the votes of the ‘old’ judges as being invalid. When Zaradkiewicz saw this committee’s report, he acknowledged that they had counted the votes wrongly – in conflict with his rules. So he then stopped the Assembly. He announced a break in the proceedings until Tuesday at 10 a.m. He explained the break by the need to disinfect the rooms and provide hygiene products to the judges (these are precautionary measures against the coronavirus). The judges will start their session on Tuesday with a discussion about the result of the last vote.

How PiS set up the candidates for President Duda

It can be seen from the results of the vote that the judges of the old Chambers did not support the selection of the returning committee, although there were also ‘old’ judges among the candidates on Saturday.

“We voted against because we do not want to take part in the Assembly, which is being chaired by Zaradkiewicz in such a way. He is ignoring our motions; we are only supposed to fulfil his wishes. He takes away our ability to speak. And we object to this,” one of the judges taking part in the Assembly says.

In turn, the former press officer of the Supreme Court, Judge Michał Lasowski, spoke this way about Saturday’s Assembly on TVN24. “The role of the chairman of the Assembly is not the role of a commander of a military unit. The President of the Supreme Court does not issue imperative decisions. He cannot decide on everything himself, hence our opposition,” said Laskowski.

He added: “I wonder whether I should continue to participate in such an Assembly, but I will stay because we want to nominate our candidates for the president of the Supreme Court. We will still be stuck at the Assembly and I hope we can proceed as befits the Assembly of the Supreme Court.”

Laskowski also said on TVN24 that Zaradkiewicz cannot close the mouths of the judges and that, while seeing what was happening in the Supreme Court, he sees ‘the twilight of the rule of law’.

Why is Zaradkiewicz behaving like this?

The amendment by PiS of the Act on the Supreme Court multiple times deliberately changed the rules to date for selecting candidates for the office of president of the Supreme Court. Now the president is to receive five to choose from. However, a candidate may be chosen by just a few Supreme Court judges. Because, according to these rules, every judge is to have one vote and every judge votes for only one candidate. Consequently, President Duda will always be able to choose from candidates nominated by the new Supreme Court judges and almost certainly one of them will become the first president of the Supreme Court.

The PiS plan was to bypass the voice of the ‘old’ judges and take control of the Supreme Court. That is why Zaradkiewicz is not allowing them to speak now, because he thinks the matter is clear.

Only that the ‘old’ judges want to have an influence on the voting and not just mechanically raise their hands to Zaradkiewicz’s orders. That is why the agenda and the rules of procedure at the Assembly are so important to them, which Duda’s ‘Commissioner’ is rejecting.